R. v. W., 2016 ONSC 784
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 20^th^ DAY OF FEBRUARY, 2014 PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.
BETWEEN:
HER MAJESTY THE QUEEN
– and –
G. W.
Isabel Blanchard, counsel for the Crown
Gordon Campbell, counsel for the Accused
HEARD: January 29, 2016
RULING ON ADMISSIBILITY OF PRIOR DISCREDITABLE CONDUCT
LACELLE, J.
1The accused G. W. is charged with committing various sexual offences against B. F. The offences are alleged to have occurred between March 1^st^ and April 30^th^, 2010.
2The Crown seeks admission of prior discreditable conduct of off-indictment evidence. In particular, it seeks the admission of the fact of two prior sexual assault convictions involving T. B., and M. F.
The positions of the parties
3Ms. Blanchard for the Crown seeks the admission of the fact of the previous convictions involving Ms. B. and Mr. F., coupled with the general fact that they are vulnerable individuals with mental disabilities that prevent them from functioning in the community. She is not seeking admission of the police synopses filed in her application record. She argues that the evidence is relevant to several live issues in the trial, particularly the issues of whether the actus reus occurred, and to rebut possible defences. She argues that this is a judge alone trial, and the risk of prejudice is diminished as there is less risk that the evidence will be used unfairly.
4Mr. Gordon argues on behalf of Mr. W. that the evidence of the prior discreditable conduct is inadmissible. He highlights the deficiencies in the evidentiary record pertaining to the prior offences, and objects to the admissibility of the hearsay evidence relied upon by the Crown. With respect to the Handy analysis, he argues that the gap in time from the 1990 offences diminishes the probative value of the evidence sought to be admitted. He submits there is a paucity of detail about the events that further undermines their probative value to any issue at trial. He submits the evidence has poisonous potential, and is impermissibly prejudicial because of the risk that the trier of fact would unintentionally engage in prohibited reasoning as a result of its admission.
Background
The alleged offences
5The allegations in the instant trial involve events alleged to have occurred in 2010 when the complainant was between 13 and 14 years old. The complainant has cognitive disabilities which have affected her development. She currently cannot function on her own in the community.
6The complainant and her mother met the accused approximately five years before the incident occurred. Throughout those years, the complainant’s mother developed a friendship with the accused and his wife.
7In April of 2010, the complainant’s mother invited the accused and his wife for dinner. During the dinner, she started to feel sick and was transported to hospital. She was diagnosed with vertigo and after being released from the hospital, had to remain in bed for a long period of time. Due to her medical condition, the complainant’s mother gave a key to her apartment to the accused so that he could come over and walk the dogs three times a day.
8The offences are alleged to have occurred during the period of time when the accused was asked to walk the dogs. The accused is alleged to have gone to the complainant’s bedroom, and asked her to remove her pyjamas and touch her breast and vagina. The accused is also alleged to have exposed his penis to the complainant, and to have asked her to touch it.
The prior discreditable conduct
9The prior discreditable conduct dates from 1990. The offence against Ms. B. occurred on the 1^st^ of March 1990. The offence against Mr. F. occurred on the 19^th^ of March 1990.
10Certified copies of the informations from those cases were filed as Exhibits. Both convictions are dated the 30^th^ of March 1990.
11The Crown presented additional evidence on the voir dire with respect to the disabilities and level of functioning of each of the prior victims, and the complainant. A summary of that evidence and the factual record it supports for the purposes of the application is discussed later in these reasons.
The applicable legal principles
12The law governing this application is set out in R. v. Handy, 2002 SCC 56, [2002] S.C.J. 57. There, the Supreme Court of Canada re-affirmed that evidence of prior discreditable conduct, or of propensity or disposition, may be relevant to the crime charged, but is usually inadmissible because its slight probative value is ultimately outweighed by its highly prejudicial effect. The presumption is that evidence of prior discreditable conduct is inadmissible. The Court explained the policy basis for the exclusion of this evidence as follows, at paragraph 37:
The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible….
13In Handy and R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, the Supreme Court of Canada reaffirmed that similar fact evidence, or evidence of prior discreditable conduct, is only admissible where the prosecution establishes on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect. The Court noted at paragraph 41 in Handy that “an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”. The Court summarized the test for admissibility as follows at para. 55:
Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
14In cases like this one where the Crown seeks to rely on the prior discreditable conduct evidence to prove issues other than identity, the court suggested that the probative value of the proffered evidence may be assessed in the following manner:
- By considering the strength of the similar fact evidence, including the extent to which the evidence can be proven and any allegations of collusion. In particular:
(a) Where there is an “air of reality” to allegations of collusion, the trial judge must be satisfied, on a balance of probabilities, that the similar fact evidence “is not tainted with collusion” (Handy @ para. 112); and
(b) Similar fact evidence may be “potentially too prejudicial to be admitted unless the trial judge is of the view it meets the threshold of being reasonably capable of belief. (Handy @ para. 134).
By identifying the “issue in question” (e.g. the live issue at trial to which the proposed similar fact is said to be relevant) and its relative importance in the particular trial. If the evidence of prior discreditable conduct is not properly capable of supporting the inferences sought by the Crown, generally, the analysis need go no further. (Handy @ paras 69-75; 115; 136).
By identifying the factors that connect or distinguish the similar fact evidence to or from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible. These “connecting factors” may, but need not, include:
The proximity in time of the similar acts;
The extent to which the other acts are similar in detail to the charged conduct;
The number of occurrences of the similar acts;
The circumstances surrounding or relating to the similar acts;
Any distinctive features unifying the incidents;
Intervening events;
Any other factor which would tend to support or rebut the underlying unity of the similar acts.
While not all factors will exist or be necessary in every case, they are intended to assist the court in considering the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn as well as the strength of the proof of the similar facts themselves: (Handy at paras 82-84; 121-132).
15The Court in Handy also addressed the approach to be taken in assessing the similarity of the conduct at issue when the evidence is said to be relevant to an issue other than the identity of the perpetrator. It held at paragraph 78 that:
The point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter (1982), 142 D.L.R. (3d0 237 (Ont. C.A.) at p. 244:
The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.
16In discussing the difference between general propensity evidence, which is always inadmissible, and evidence of a specific propensity, which may be admissible, the Court in Handy also noted at para. 87 that “cogency increases as the fact situation moves further to the specific end of the spectrum”.
17With respect to the issue of prejudice, potential prejudice to the accused is assessed by considering the moral prejudice and the reasoning prejudice. Moral prejudice against the accused means the risk of convicting the accused because he is a “bad person”, rather than based on proof that he committed this offence. Reasoning prejudice means the risk of distracting or confusing the trier of fact, or of undue consumption of time, and the danger that the jury may have difficulty in disentangling the subject matter of the charges from the evidence of prior discreditable conduct: see Handy at para 83, Shearing at paras 38-74.
Analysis
The evidence on the voir dire
18The type of evidence generally presented on an application of this kind was summarized by Hill J. in R. v. F.(A.), 2010 ONSC 5824, [2010] O.J. No. 4564 (S.C.J.) at para. 78:
In attempting to prove a similar fact transaction, the prosecution may call a complainant respecting a different transaction, secure by admission the agreement of the defence as to what transpired in the other transaction, or perhaps in limited circumstances file a properly certified transcript of evidence from another proceeding. An accused is generally at liberty in one trial to dispute a finding of guilty from an earlier proceeding including where there has been a plea of guilt … [citations omitted]
19In this case, the Crown has presented no viva voce evidence pertaining to the prior discreditable conduct, or transcripts from the guilty pleas. The court was advised that the recordings from the pleas are lost, and that is why the Crown has not produced transcripts. With respect to presenting viva voce evidence, understandably, that process has not been pursued by the Crown in view of the difficulties it would present to Ms. B. and Mr. F.
20The application record contains police records providing a synopsis for each of the offences leading to conviction. The Crown confirmed in oral argument that she is not seeking to have those documents admitted. She indicated that she is seeking admission of the certified copies of the informations pertaining to the convictions. She is also seeking admission of evidence that each of Ms. B. and Mr. F. suffered from disabilities that rendered them incapable of functioning on their own in the community.
21In that regard, the Crown called viva voce evidence from an employee at a local agency who has been working with Mr. F. for the past ten years. She gave general evidence about Mr. F.’s functioning, and relayed that her understanding of his developmental age is that of a six year old.
22With respect to Ms. B., the Crown did not call any witness, but instead seeks to rely on the facts relayed about Ms. B. in a report from the Ministry of Community and Social Services dating from 1990. The Crown indicates in her submissions that this report was prepared for the purposes of assessing Ms. B. for a disability pension. However, there is no clear indication of the purpose for which the report was prepared within the report itself.
23The Crown also called viva voce evidence from the mother of the complainant in the instant case, who gave evidence about her daughter’s level of functioning. Through her, the Crown filed a psychological assessment report relating to the complainant. This report was marked as a lettered exhibit.
24Given this record, I find that the only clearly admissible evidence for consideration on the Handy analysis is the fact of the previous convictions for sexual assault in 1990 confirmed in the certified copies of the informations pertaining to each conviction.
25With respect to the evidence called by the Crown about Ms. B., the evidence tendered is hearsay. There is no evidence it was properly tendered pursuant to s. 30 of the Canada Evidence Act. No evidence was presented as to the necessity and reliability of the record that might permit consideration of its admission on the principled approach to the admissibility of hearsay evidence. Accordingly, while the report was marked as a lettered Exhibit, it will not be admitted as evidence on the voir dire.
26With respect to the evidence called about Mr. F., the court heard very general evidence about how he has functioned during the past ten years. Even this evidence contained hearsay, as the witness was asked to relay her understanding of clinical assessments of Mr. F.’s developmental age. The hearsay evidence is not accepted by the court for the truth of its contents. The remaining evidence establishes that Mr. F. cannot function in the community on his own, and has not been able to do so for the past ten years. While there is a very strong inference available that this was the case in 1990 when Mr. F. was sexually assaulted by the accused, there is no direct evidence as to his condition at that time.
27Evidence from the complainant’s mother was adduced which establishes that the complainant in this matter has cognitive deficits and cannot reside on her own in the community. The psychological report tendered during Ms. F.’s evidence is hearsay, and was not the subject of an agreement between counsel to be admitted for its facts. There is no additional evidence to suggest it is admissible pursuant to s. 30 of the Canada Evidence Act, or pursuant to the principled approach to the admissibility of hearsay evidence. Accordingly, it will not be admitted as evidence on the voir dire. However, given the evidence adduced by Ms. F., the report is not necessary to establish the general facts about the complainant’s functioning sought by the Crown for the purposes of this application.
The Handy analysis
28The evidence presented by the Crown does not come close to satisfying me, even on a balance of probabilities, that the evidence is sufficiently probative to outweigh its considerable prejudicial effect.
29The Handy analysis requires the court to assess whether the proposed evidence of discreditable conduct is sufficiently strong and cogent to be capable of properly raising the inferences contended for it by the Crown. Various features of the evidence may be analyzed under this heading, including the factors that connect or distinguish the evidence proposed to the facts alleged in the charge.
30The Crown argues that the degree of similarity between the conduct at issue here and the prior discreditable conduct is not critical given the issues to which the proposed evidence relates. She argues the proposed evidence is relevant to a number of issues, such as establishing a modus operandi, to provide “motive”, to rebut defences, and “to explain elements of the offence”. She directs the court to the case of R. v. Peterffy, 2000 BCCA 132, [2000] B.C.J. No. 338 (B.C.C.A.) as an example of a case where, notwithstanding the lack of similarity in the conduct alleged and the prior discreditable conduct, the evidence was admissible because the issue to which it related did not require similarity to have sufficient cogent. Peterffy was a case where the accused, who was charged with murder, had a previous relationship with the victim. The accused’s prior conduct in threatening and acting violently toward the victim was found to be relevant to the issues of motive, intention, and narrative. A clear and cogent articulation of how the evidence was relevant to those issues was presented in that case, and the resulting admission into evidence of the prior discreditable conduct was consistent with the case law that has evolved on this issue where the context for the offences involves domestic violence.
31The context of the analysis here is dissimilar to domestic violence cases where the prior discreditable offence conduct relates to the same complainant or victim. Here, the Crown is seeking to adduce evidence of the accused’s conduct with other individuals. To establish the relevance of that evidence to an issue in this trial, it must provide some detail about the circumstances in which the conduct occurred. The Crown is unable to direct me to any authority that holds otherwise.
32The need for cogent detail about the conduct sought to be admitted has been a central theme in cases dealing with this legal issue in the context of allegations of sexual abuse. For instance, in R. v. Blake, 2003 CanLII 13682 (ON CA), [2003] O.J. No. 4589 (C.A.), a case which also involved the alleged sexual abuse of a young complainant, the Court of Appeal for Ontario had these comments at paras. 79-80 about the similar fact evidence:
The risk in relying on primarily generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.
In this case, the initial inference that can be drawn from the identified similarities in the appellant’s past conduct amounts to little more than that he was engaged in the genital touching of children aged ten or under in the past, in circumstances involving privacy, and that following the sexual abuse, he may apologize to the child. Although not irrelevant, this inference contributes only marginally to determining whether the specific incident described by the complainant actually took place.
33Similarly here, I am unable to see how admitting the bare fact of previous convictions relating to a class of vulnerable complainants for the purposes identified by the Crown would permit anything other than general propensity reasoning. Handy confirms that general propensity evidence is always inadmissible. Only evidence of specific propensity may be admissible.
34The paucity of the evidence about the circumstances of these offences leaves the court unable to conduct a meaningful or fair analysis having regard to the factors outlined in Handy, and to assess whether any specific propensity has been demonstrated. The court is unable to analyse the similarities and dissimilarities between the facts alleged in the instant case and the evidence of prior discreditable conduct. Moreover, the one circumstance which is known, that is the date of the previous discreditable conduct, does not heighten the probative value of the evidence. There is a gap of 20 years between the 1990 offences and the events alleged here. While this is only one factor, and a gap in time alone is not fatal to the analysis, I am mindful of the court’s caution in Handy at para. 122 that “lapses of time open up a greater possibility of character reform, and would tend to undermine the premise of continuity of character or disposition”.
35The Crown suggests that the court has a “reliable record that the accused previously acknowledged sexually abusing disabled people who can’t live in the community.” Even assuming the evidentiary record actually established that Mr. F. and Ms. B. were disabled at the time of the offences, this formulation of the propensity falls short of the evidence of specific propensity required. For instance, in Handy, the Crown alleged that the accused had a propensity to violence which emerged in a desire for hurtful sex. The Supreme Court of Canada held at para. 86 that while this formulation of the accused’s propensity had some context and was more specific than a general propensity for violence, it remained a definition of so general a propensity that it was still of little real use, particularly when it was sought to use “propensity” not to predict future conduct in a general way, but to conclude that the respondent was guilty of acting in the specific way under the specific circumstances alleged by the complainant. Similarly here, while the Crown’s formulation of the propensity of the accused includes the general context of a propensity to offend against a class of complainant, I find that the evidence has no probative value, because it does not rise above being evidence of general propensity. It would provide nothing of value in the trial.
36This is not to suggest that a propensity to offend against a certain type of complainant is not a cogent link between the conduct alleged and the prior discreditable conduct. Rather, I find that reliance on that one factor alone in the context of the issues in this trial does not establish the requisite degree of cogency between the proffered evidence and the issues at trial. As was noted in Handy, “[c]ogency increases as the fact situation moves further to the specific end of the spectrum”. The absence of information about the additional circumstances of the previous conduct impairs a reasoned and fair assessment of cogency.
37In view of my conclusion that the evidence has no probative value, the analysis need go no further to an assessment of whether the probative value of the evidence outweighs its prejudicial effect. However, a comment about the prejudice of this kind of evidence is warranted. I have no hesitation in finding that to admit the evidence proposed by the Crown in a jury trial would irreparably prejudice any jury charged with trying the offences currently charged, and would risk a wrongful conviction. The fact that this is a judge alone trial cannot cure this prejudice. To admit the evidence would be contrary to law and unjust.
38For the reasons indicated, I am not satisfied that the Crown has met its burden on this application. The application is dismissed.
Madam Justice Laurie Lacelle
Released: January 29, 2016
CITATION: R. v. W., 2016 ONSC 784
COURT FILE NO.: 14-100
DATE: 2016/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 20^th^ DAY OF FEBRUARY, 2014 PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.
HER MAJESTY THE QUEEN
– and –
G.W.
RULING ON ADMISSIBILITY OF PRIOR DISCREDITABLE CONDUCT
Madam Justice Laurie Lacelle
Released: January 29, 2016